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Synopsis

The Delhi High Court recently granted protection to Himalaya Wellness against Wipro Enterprises with respect to a product sold under the name ‘EVECARE’ and ‘EVECARE FORTE’. The court took cognizance of the fact that though the classes of registration were different, the targeted audience was same, the purpose of the alleged product was similar and the entire positioning suggested chances of confusion to the consumers.

Justice Amit Bansal, while allowing the application for an injunction by the plaintiffs, held, “A prima facie case of passing off is made out on behalf of the plaintiffs. The balance of convenience is also in favour of the plaintiffs and against the defendant inasmuch as the product of the defendant has been launched only about 1.5 years back and has limited sales. On the other hand, the product of the plaintiffs has been in the market for 24 years and has significant sales. Irreparable harm would be caused not only to the plaintiffs but also to the public if an injunction as sought is not granted in favour of the plaintiffs.”

Following are some factors considered by the court in favour of the plaintiffs herein –

(i) Both the set of goods in question targeted the same consumers, that is, women;

(ii) Function and purpose of both the goods in question were similar;

(iii) Both the products were complimentary to each other;

(iv) Channels of selling both of them were same and both were sold under the common category of ‘Women care’;

(v) When a prospective consumer would search the product ‘EVECARE’ on third-party platforms, such as Amazon, both the products would show up, which was likely to cause confusion.

Dismissing the contention that the class opted by the defendants were different, Court said, “it may be relevant to note that under the Nice classification, vaginal washes are specifically included under both class 3 and class 5, even though they are qualified with the words ‘for medicinal purpose’ in class 5 and the words ‘for personal sanitary and deodorant purpose’ in class 3.”

Reliance was inter-alia placed on Kaviraj Pandit Durga Dutt v. Navaratna Pharmaceutical, AIR 1965 SC 980 and Mayo Foundation v. Bodhisatva Charitable Trust, 2023 SCC OnLine Del 3241.

Brief Background

The plaintiffs were involved in the manufacture and distribution of ayurvedic medicines since 1930s. Over the years, plaintiffs had developed several pharmaceutical-grade herbal healthcare products.

Under the house mark, Himalaya, plaintiffs manufactured and sold an ayurvedic proprietary medicine used as uterine tonic for women, under the marks ‘EVECARE’ and ‘EVECARE FORTE’. This product was meant to relieve symptoms of dysfunctional uterine bleeding and to provide uterine health with long-term safety.  

The mark ‘EVECARE’ was obtained by the plaintiffs on December 2, 1997 on a ‘proposed to be used’ basis in respect of medical and pharmaceutical preparations in class 5.

On November 2022, plaintiffs were informed that the defendant has obtained registration of the mark ‘EVECARE’ in class 3 on a ‘proposed to be used’ basis in respect of cosmetic products.

The plaintiffs, accordingly, issued a cease and desist notice dated November 23, 2022 to the defendant which was turned down by them, vide reply dated December 6, 2022.

Case Title: Himalaya Wellness Company v. Wipro Enterprises | CS (COMM) 118/2023